• Report on Trade Barriers - Examination Procedure Concerning an Obstacle to Trade Consisting of Measures Adopted by the US Affecting Trade in Remote Gambling Services (European Commission, June 10, 2009)

• Council of Europe, Commissioner for Human Rights – Urging Resettlement to Member States of Certain Detainees from Guantánamo (June 5, 2009)

• Guidelines on International Human Rights Fact-Finding Visits and Reports – The Lund-London Guidelines (June 1, 2009)

• Republic of Iraq v. Beaty et al. (U.S. Supreme Court, June 8, 2009)

• Secretary of State for the Home Department v AF (UK House of Lords, June 10, 2009)

• Wiwa v. Shell Petroleum Development Company of Nigeria Limited Summary Order, Settlement and other documents (2nd. Cir. June 3, 2009)

• U.S Dept. of Commerce Task Force Secures Extension of Metric Labeling Provision that Benefits U.S. Companies

Report on Trade Barriers - Examination Procedure Concerning an Obstacle to Trade Consisting of Measures Adopted by the US Affecting Trade in Remote Gambling Services (European Commission, June 10, 2009)

Click here for document (approximately 94 pages)

The European Commission (“Commission”) published its report on trade barriers, examining United States measures restricting gambling services. The report comes in the aftermath of a 2007 complaint lodged by the Remote Gambling Association ("RGA") wherein RGA, pursuant to Article 4 of Council Regulation (EC) No 3286/94, alleged that the United States' ban on foreign internet gambling providers was in violation of the WTO rules, specifically Articles XVI (Market Access) and XVII (National Treatment) of the GATS. The RGA also claimed that the US measures amounted to “discriminatory enforcement against EU companies” and “were not justified under Article XIV (General Exceptions) of the GATS.” As a result, the Commission instituted an examination procedure in 2008 and “gathered information and comments from [European] Community and US suppliers of remote gambling and betting services” and other parties involved.

The information collected purports to show that the EU has a strong interest in the gambling industry, where the EU is home to the “ world's leading internet gaming business.” The US measures, the report reads, have “forced the total withdrawal and/or absence of EU companies from the US market and have significant additional negative effects on their business outside the US.” Furthermore, the report states that “Community enterprises affected by the US measures have suffered, and continue to suffer, adverse effects as a result of the US measures under investigation.” The report concludes that “[t]he investigation has shown that the US measures under investigation are inconsistent with the WTO agreements. Furthermore, it has concluded that the measures cannot be justified on grounds of public policy concerns given notably the fact that some types of remote supply are allowed in the US, and that alternative measures in the form of strict regulation of the supply of the service are currently being used in the US to address the relevant public policy concerns.”

The report does not, however, stipulate any specific recourse. Instead, it carefully notes that one of the factors that will be considered in dealing with the alleged US GATS violations will depend on the “approach that the new US Administration takes with regard to the subject matter under investigation in this Trade Barriers Regulation,” as well as “the state of play in the ongoing process towards the withdrawal of the US GATS commitments on gambling and betting services, especially given that the definition of the measures at issue and the remedy reasonably available to the EC under WTO rules may be affected by the withdrawal.”

Council of Europe, Commissioner for Human Rights – Urging Resettlement to Member States of Certain Detainees from Guantánamo (June 5, 2009)

Click here for document (approximately 2 pages)

The European Commissioner for Human Rights, Thomas Hammarberg, published a letter addressed to the Permanent Representatives of the 47 Council of Europe member states, urging them to accept detainees from Guantanamo. He wrote the letter after his recent visit to Washington, D.C.

In his letter, the Commissioner highlighted the importance and the urgency of the camp closure, calling the Guantanamo camp the “world-wide symbol of injustice and oppression, which has stained the US but to some extent also some other countries given the inter-state transfers to Guantánamo that have occurred.” He added that “serious affronts to the rule of law that have occurred in Guantánamo are very much also a matter of serious concern to Europe.”

In an attempt to address wide-spread criticism of accepting potentially harmful individuals, the Commissioner noted that “[e]xpert reports have made clear that the majority of the Guantánamo detainees have not committed hostile acts against the US or its allies, only less than ten per cent have been characterized as al-Qaeda fighters and several of them are no more than 'volunteer foot soldiers.'” Furthermore, the Commissioner added that “[a]mong the current detainees there are approximately fifty persons who are ‘cleared for release’ by the US authorities but cannot be repatriated because they are stateless or likely to face torture or other serious human rights violations if forcibly returned to their home countries. They come from various countries such as Algeria, China, Libya, the Occupied Palestinian Territories, Russia, Syria, Tajikistan, Tunisia and Uzbekistan.” Appealing to the international rule of law, the Commissioner stated “that a number of the Guantánamo detainees are in need of international protection,” especially since reports have resurfaced that “some of those released and returned to their home countries have suffered serious human rights violations, such as torture and unlawful detention.”

Finally, the Commissioner expressed hope that “a decision [to accept detainees] by Council of Europe member states will constitute not merely a gesture of a humanitarian nature. They will in effect strengthen their fight against terrorism by reaffirming that all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms, for which the Council of Europe was created and has worked for sixty years now.”

Guidelines on International Human Rights Fact-Finding Visits and Reports – The Lund-London Guidelines (June 1, 2009)

Click here for document (approximately 10 pages)

The International Bar Association’s Human Rights Institute and the Raoul Wallenburg Institute have published Guidelines on International Human Rights Fact-Finding Visits and Reports, outlining a set of procedural methods with the aim of contributing “to good practice in the conduct of fact-finding visits and in the compilation of reports.”

The Preamble recognizes that “[f]act finding and report writing are essential to human rights monitoring.” As a result, [r]eports must be clearly objective and properly sourced, and the conclusions in them reached in a transparent manner.” Accordingly, “a report [that] has been compiled in accordance with these guidelines” will serve as as a type of guarantee that “the allegations, observations and conclusions in it can be reasonably relied upon, thus enhancing the efficacy and credibility of the report. This will enhance fact finding as a step in a constructive process to improve the general climate of human rights compliance and to protect the victims of human rights violations.”

There are several main themes in the Guidelines, including, among others, the need to enforce objectivity and eliminate bias in the fact-finding process.

Republic of Iraq v. Beaty et al. (U.S. Supreme Court, June 8, 2009)

Click here for document (approximately 20 pages)

The United States Supreme Court held in Republic of Iraq v. Beaty et al., an action instituted by US nationals against Iraq for cruel mistreatment and abuse inflicted upon them or their relatives by the Saddam Hussein regime, that Iraq was immune to suits in US federal courts. According to the Court, although Iraq was once designated a sponsor of terrorism, and therefore initially stripped of its immunity under the Foreign Sovereign Immunities Act, the Presidents's decision to waive the application of this section with respect to Iraq stripped the US courts of jurisdiction.

The Court concluded that “[w]hen the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq. As a result, the courts below lacked jurisdiction.”

The Court dismissed the Respondents' argument that their claims should not be barred because the President's waiver took place after the conduct allegedly committed by Iraqi officials. According to the Court, “[l]aws that merely alter the rules of foreign sovereign immunity, rather than modify substantive rights, are not operating retroactively when applied to pending cases. Foreign sovereign immunity 'reflects current political realities and relationships,” and its availability (or lack thereof) generally is not something on which parties can rely 'in shaping their primary conduct.'”

Secretary of State for the Home Department v AF (UK House of Lords, June 10, 2009)

Click here for document (approximately 56 pages)

The United Kingdom House of Lords allowed three individuals to appeal their nonderogating control orders, which were made pursuant to section 2 of the Prevention of Terrorism Act 2005, authorizing the secretary of state to issue such orders if there are reasonable grounds for suspecting individuals of involvement in terrorism-related activity. The appellants claimed that “the procedure that resulted in the making of the control order[s]” violated their right to a fair hearing guaranteed by Article 6 of the European Convention on Human Rights. They claimed that “this right was violated by reason of the reliance by the judge making the order upon material received in closed hearing the nature of which was not disclosed to the appellant.”

The House of Lords agreed with the appellants and held that appellants' procedural rights were violated. The House of Lords cited the recent European Court of Human Rights decision in A and others v. United Kingdom, wherein the European Court held that “[w]hile in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond.”

Relying on the European Court decision, the House of Lords held that an individual in government control “must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. . . . Where, however, the open material consists purely of general assertions and the case against the controlee [individual held pursuant to a control order] is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

Wiwa v. Shell Petroleum Development Company of Nigeria Limited Summary Order, Settlement and other documents (2d. Cir. June 3, 2009)

Click here for original complaint (approximately 25 pages); click here for District Court SMJ decision to dismiss (approximately 24 pages); click here for 2d Cir. decision to remand (approximately 6 pages); click here for settlement agreement between Wiwa plaintiffs and Energy Equity Resources Limited Re Wiwa v. Shell Settlement (approximately 4 pages); click here for settlement agreement and mutual release (approximately 26 pages); click here for settlement and order (approximately 48 pages)

After a lengthy legal struggle between Nigerian plaintiffs and Shell, the two parties decided to settle their claims out of court, where Shell agreed to pay the plaintiffs, representatives of Nigerian human rights activists killed and tortured by individuals allegedly supported by the oil producer, a sum of $15.5 million.

The dispute began when the plaintiffs initiated suit in the US, invoking the Alien Tort Claims Act, 28 U.S.C. §10 1350, “alleging that ten of their Nigerian relatives were detained, tortured, and executed by SPDC [Shell Petroleum Development Company of Nigeria, Ltd.] directly and in concert with the Nigerian government, and with the knowledge of SPDC’s corporate parents, formerly known as Royal Dutch Petroleum Company and Shell Transport and Trading Company (collectively ‘Royal Dutch/Shell’).”

The District Court for the Southern District of New York dismissed the claim for lack of personal jurisdiction on March 2, 2008. In addition, the lower court “denied jurisdictional discovery on the basis that the [plaintiffs] had access to the discovery previously conducted in related cases, which the court found to have been sufficient in scope to justify the dismissal.” On June 3, 2009, the 2nd Circuit vacated the lower court’s judgment and remanded for the district court “to reconsider its denial of jurisdictional discovery and dismissal of the action in light of the subsequent and continuing discovery in the related actions.” Only five days later, on June 8, 2009, the parties agreed to settle the case out of court.

The decision to settle out of court has received mixed responses, where some have applauded the substantial settlement obtained, and others have criticized the non-acceptance of responsibility by Shell and its subsidiaries.

U.S Dept. of Commerce Task Force Secures Extension of Metric Labeling Provision that Benefits U.S. Companies

Click here for statement (approximately 1 page)

The United States Department of Commerce issued a press release stating that it had successfully “ensure[d] extension of both non-metric and metric labeling provisions on product packaging for U.S. businesses exporting to the European Union—saving U.S. firms hundreds of millions of dollars.”

According to the Department of Commerce's own announcement “[t]he ruling will allow U.S. firms to use non-metric units on packaging and extends the current dual-labeling provisions indefinitely.”

The rule, published in the Official Journal of the European Union, will be enforced by all EU member states by January 1, 2010.